立法會 Legislative Council

LC Paper No. CB(2)1618/06-07(01)

Ref : CB2/PL/AJLS

Panel on Administration of Justice and Legal Services

Background brief for the meeting on 23 April 2007

Juvenile justice system Purpose 1. This paper gives an account of the past discussions of Members of the Legislative Council (LegCo) concerning the review of juvenile justice system and related issues. Background

2. The Juvenile Offenders (Amendment) Bill 2001, which sought to implement the recommendation of the Law Reform Commission (LRC) by raising the minimum age of criminal responsibility from seven to 10, was passed by LegCo on 12 March 2003.

3. During the deliberation of the Bills Committee, some members expressed support for the proposal of raising the minimum age of criminal responsibility from seven to 10, and some other members were in favour of raising it to 12, pending the outcome of the review on the juvenile justice system recommended by the LRC. The Administration advised the Bills Committee that the City University of Hong Kong had been commissioned to conduct a consultancy study on the measures adopted by overseas countries in handling unruly children below, and juveniles above, the minimum age of criminal responsibility. The information would facilitate the Administration to identify measures to fill the gap of provision of services for children and juveniles at risk after the minimum age was raised to 10.

4. On the recommendation of the Bill Committee, the House Committee agreed at its meeting on 28 February 2003 that the Panel on Administration of Justice and Legal Services (AJLS Panel) should follow up on -

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(a) the improvements which should be made to the existing juvenile court system and proceedings; and

(b) the recommendations of the consultancy study on the review of

services for juvenile offenders.

Work of the AJLS Panel Visit to juvenile courts 5. In March 2003, the AJLS Panel paid a visit to the respective juvenile courts at the Eastern Magistrates' Courts and the Kowloon City Magistrates' Courts to better understand the existing operation of juvenile courts. The Panel discussed how the setting of the juvenile courts and the detention facilities at the two Magistrates' Courts could be improved. The Administration agreed to explore how to improve the present situation, taking into account the physical constraints of existing court buildings, the availability of resources, and the need to avoid disruption to court services. Research report on operation of juvenile courts in overseas countries 6. At the request of the AJLS Panel, the Research and Library Services Division (RLSD) of the LegCo Secretariat undertook a research study and presented the Research Report on "Operation of Youth Courts in Selected Overseas Places" (RP07/02-03) to the Panel at its meeting on 26 May 2003. The Research Report provides an overview of the juvenile justice system and the operation of youth courts in the United Kingdom, Canada, and New Zealand, focusing on the jurisdiction and constitution of a youth court, procedures after arrest of a juvenile offender, court procedures, sentencing and court environment.

Establishment of the Subcommittee on Juvenile Justice System 7. The consultancy study (paragraph 3 above refers) was commissioned by the Security Bureau and carried out by the Youth Studies Net, City University of Hong Kong. The Consultancy Report entitled "Measures Alternatives to Prosecution for Handling Unruly Children and Young Persons : Overseas Experiences and Options for Hong Kong" was published in August 2003. The Consultancy Report examined a total of six countries, namely, Singapore, England and Wales, Belgium, Canada, Australia (Queensland) and New Zealand. 8. The Consultancy Report recommended six options on diversionary measures alternative to prosecution of children and young persons. The Consultants hoped that the report could provide a road map for Hong Kong and led to the development of a new juvenile justice system incorporating the principles of practices of

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restorative justice. Restorative and reintegrative practices involved the offenders taking responsibility for offending; repairing harm; reintegrating offenders, victims and the community; and the empowerment of all those affected by what had happened including the offenders, families, victims and the communities. The objectives were to provide for more effective means for addressing the needs of the offenders and the victims as well as their families, preventing re-offending and achieving reintegration of the offenders into the society. 9. The AJLS Panel and the Panel on Security held a joint meeting on 27 October 2003 to receive a briefing on the Consultancy Report. As the policy issues arising from the review on juvenile justice system straddled the policy portfolios of a number of bureaux, the two Panels recommended that a subcommittee be set up under the House Committee to follow up the relevant issues. The recommendation was agreed by the House Committee at its meeting on 7 November 2003. 10. Under the chairmanship of Hon Margaret NG,, the Subcommittee on Juvenile Justice System held five meetings to discuss relevant issues with the Administration and received views from deputations. At the end of the second term LegCo, the Subcommittee reported its deliberations to the House Committee on 25 June 2004. A copy of the report is in Annex I. 11. The Subcommittee recommended that the Administration should report to the LegCo in the new LegCo term on the following matters -

(a) the effectiveness of the enhanced support measures introduced by the Administration since October 2003; and

(b) the outcome of the review on the development of a new juvenile

justice system incorporating the principles and practices of restorative justice.

Subsequent developments LegCo questions raised by Members 12. At the Council meeting on 9 March 2005, Dr Hon Fernando CHEUNG raised a written question concerning the development of a juvenile justice system. An extract from the Official Record of Proceedings is in Annex II. 13. At the Council meeting on 10 May 2006, Hon Audrey EU raised a written question concerning support services provided to unruly children below the age of 10 after the minimum age of criminal liability had been raised to 10 and related issues. An extract from the Official Record of Proceedings is in Annex III.

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Progress of work of the Administration 14. The AJLS Panel has been monitoring the progress of the follow up by the Administration on the matters referred to in paragraph 9 above. 15. In January 2005, the Administration reported progress on the enhanced measures introduced since 2003. As regards the suggestion for the development of a new juvenile justice system incorporating principles and practices of restorative justice, it advised that the relevant bureaux and departments were still at an early stage of deliberations. As the subject matter was a complex one, it was not able to commit to a firm time frame for concluding the discussions. Latest position 16. In August 2005, the Administration provided a paper on the progress and effectiveness of the enhanced measures introduced since October 2003 targeting at unruly children and young offenders (LC Paper No. CB(2)2508/04-05 (01)). 17. In December 2006, the Administration provided a paper on the progress made in its review of the proposal to incorporate the principles and practices of restorative justice in dealing with juvenile offenders (LC Paper No. CB(2)765/06-07(01)). 18. The AJLS Panel agreed to follow up the relevant issues at the meeting on 23 April 2007. Members of the Panel on Security and the Panel on Welfare Services, as well as other LegCo Members, have been invited to join the discussion. The deputations which had given views to the Subcommittee on Juvenile Justice System have also be invited to give views to the Panel. Relevant papers 19. A list of relevant papers available on the LegCo website is in Annex IV. Council Business Division 2 Legislative Council Secretariat 18 April 2007

立法會立法會立法會立法會Legislative Council

LC Paper No. CB(2)2895/03-04

Ref : CB2/HS/2/03

Paper for the House Committee meetingon 25 June 2004

Report of the Subcommittee on juvenile justice system

Purpose

1. This paper reports on the deliberation of the Subcommittee on juvenilejustice system (the Subcommittee).

Background

2. The Law Reform Commission (LRC) in its Report on "Minimum Age ofCriminal Responsibility in Hong Kong" recommended, among other things, thatthe age of criminal responsibility should be raised from seven to 10, and that theAdministration should conduct a general review on the juvenile justice system inHong Kong. The purpose of the review is to ensure that there are effectivealternatives to prosecution that on the one hand provide adequate security to thecommunity, and on the other hand prevent errant youngsters from degeneratinginto hardened criminals.

3. On 12 November 2001, the Juvenile Offenders (Amendment) Bill 2001was introduced into the Legislative Council (LegCo) to implement therecommendation of the LRC to raise the minimum age of criminal responsibilityfrom seven years of age to 10 years of age. A Bills Committee was formed tostudy the Bill and its report was tabled in LegCo on 12 March 2003. The Billwas passed by LegCo on the same day. A copy of the report of the BillsCommittee is in Appendix I.

4. Members of the Bills Committee had different views on the proposal inthe Bill to raise the minimum age to 10 years. Some members were in supportof the proposal, while some other members were in favour of raising theminimum age of criminal responsibility to 12 years, pending the outcome of thereview on the juvenile justice system recommended by LRC. TheAdministration advised the Bills Committee that City University of Hong Kong

Annex I

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had been commissioned to conduct a consultancy study on the measures adoptedby overseas countries in handling unruly children below, and juveniles above, theminimum age of criminal responsibility. The information would facilitate theAdministration to identify measures to fill the gap of provision of services forchildren and juveniles at risk after the minimum age is raised to 10 years. TheAdministration maintained the view that the minimum age should be raised to 10years in the first instance, and would propose raising the age further from 10 to12 after taking into account the findings of the consultancy study.

5. The Bills Committee suggested that the Panel on Administration of Justiceand Legal Services should follow up -

(a) improvements, if any, to the existing juvenile court system andproceedings; and

(b) the recommendations of the consultancy study.

6. The Consultancy Report entitled "Measures Alternative to Prosecution forHandling Unruly Children and Young Persons : Overseas Experiences andOptions for Hong Kong" (the Consultancy Report) was published in August 2003.It examined the systems in six overseas jurisdictions, namely, Singapore, Englandand Wales, Belgium, Canada, Australia (Queensland) and New Zealand, and putforward certain recommendations on measures alternative to prosecution forhandling unruly children and young offenders in Hong Kong. TheAdministration has set up an inter-departmental group comprising representativesfrom the Security Bureau, Health, Welfare and Food Bureau, Education andManpower Bureau (EMB), Social Welfare Department (SWD), the Police andDepartment of Justice (DoJ) to consider how to take forward therecommendations in the Consultancy Report.

7. To follow up the recommendations of the Bills Committee in paragraph 5above, the Panel on Administration of Justice and Legal Services and the Panelon Security held a joint meeting on 27 October 2003 to receive a briefing by theAdministration on the Consultancy Report. As the policy issues arising fromthe Consultancy Report straddle the policy portfolios of a number of bureaux, thetwo Panels recommended that the House Committee should set up asubcommittee to follow up the relevant issues.

The Subcommittee

8. At the meeting of the House Committee on 7 November 2003, Membersagreed to form a subcommittee to follow up the policy issues arising from thereview on juvenile justice system. A membership list of the Subcommittee is inAppendix II. A list of the papers considered by the Subcommittee is inAppendix III.

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9. Under the chairmanship of Hon Margaret NG, the Subcommittee has heldfive meetings to discuss relevant issues. At two of these meetings, theSubcommittee received views from deputations on the Consultancy Report, aswell as the Administration's overall responses to the recommendations of theConsultancy Report and the issues raised by the Subcommittee and deputationsrespectively. A list of the deputations together with the 16 written submissionsreceived from them is in Appendix IV.

Deliberation of the Subcommittee

The Consultancy Report

10. The Administration and a Consultant from the research team briefed theSubcommittee on the Consultancy Report which covers the following majoraspects -

(a) in-depth research on the measures alternative to prosecutionadopted in the six selected overseas jurisdictions for handlingunruly children and young persons;

(b) an assessment of the effectiveness of such measures in preventingand diverting children and young persons from going astray;

(c) the case for introducing new measures alternative to prosecution ofunruly children and young persons in Hong Kong; and

(d) six specific options proposed for Hong Kong.

Chapter 12 of the Consultancy Report on "A summary of the research findingsand recommendations" is in Appendix V.

11. The Consultancy Report suggests that there is a general trend in juvenilejustice systems overseas to shift from punitive and retributive approaches andfrom purely welfare models to a new emphasis on restorative and reintegrativepractices. Restorative and reintegrative practices involve the offenders takingresponsibility for offending; repairing harm; reintegrating offenders, victims andthe community; and the empowerment of all those affected by what has happenedincluding the offenders, families, victims and the communities. The objectivesare to provide for more effective means for addressing the needs of the offendersand the victims as well as their families, preventing re-offending and achievingreintegration of the offenders into the society.

12. The Consultancy Report recommends six options on diversionarymeasures alternative to the prosecution of children and young persons in HongKong. The Consultants hope that the report can provide a road map for Hong

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Kong which will lead to the development of a new juvenile justice systemincorporating the principles and practices of restorative justice.

13. The Administration has considered the Consultants' recommendations andproposed to implement a number of enhanced measures to further strengthen thesupport to unruly children and young offenders. The deliberation of theSubcommittee on the six options recommended in the Consultancy Report andthe enhanced support measures proposed by the Administration is summarized inparagraphs 14 to 44 below.

Four options recommended for children below the minimum age of criminalresponsibility of 10

Police Child Support Service (PCSS)

14. The Consultancy Report proposes that a PCSS be launched to assist unrulychildren with the consent of the parents. Frontline Police officers should giveimmediate support to children-at-risk. Sometimes, suitable diversionary actionsof a fairly minimal kind can be taken, e.g. arranging for the parent/child to makean apology or to help the victim. Where more difficulties are encountered, thePolice may refer the child, through SWD, to attend an Empowerment Programmeorganized by an Integrated Children and Youth Services Centre (ICYSC) or aFamily Support Conference organized by an Integrated Family Service Centre.The Police may also initiate a Care or Protection Order if a child or family isuncooperative in the process.

15. The deputations generally support the introduction of a PCSS. Somedeputations have expressed the view that since frontline Police officers play a keyrole in handling cases of unruly children who came to their attention, they shouldreceive relevant training such as in child psychology and basic counselling skills.Some deputations are of the view that the Police should not act passively inhandling unruly children below the age of 10 despite the fact that the minimumage of criminal responsibility has been raised, as this could send a wrongmessage to unruly children and their families that the Police can do nothing untilthe offenders have reached the age of 10. The deputations consider that the roleof the Police in referring children and young offenders to seek follow-up supportservices should be strengthened, and that there should be greater collaborationbetween the Police, the educational sector and non-government organizations(NGOs).

16. The Administration has explained that with the raising of the minimumage of criminal responsibility to 10, children over seven but below 10 can nolonger be prosecuted. In its view, any formalized programmes initiated andarranged by the Police to target at children in this age group may be criticized astantamount to lowering the age of criminal responsibility to below 10, or forimplicating such children. However, the Police are prepared to extend their

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Juvenile Protection Section (JPS) service, currently only available to youngstersover 10 years of age, to those below 10 if the circumstances of the case so justify.Subject to parental consent, JPS supervision visits would be made to the unrulychildren for a maximum of two years. With parental consent, the case can alsobe referred to SWD for assessing and following up the support services required.The need for a Care or Protection Order will be thoroughly assessed by socialworkers having regard to the individual circumstances of the child concerned andhis/her family.

17. The Administration has informed the Subcommittee that since 1 October2003, it has strengthened police referrals of unruly children below 10 andjuveniles to service providers for follow-up support services with parentalconsent. District Social Welfare Officers of SWD and School DevelopmentOfficers of the Careers Guidance and Home School Cooperation Section of EMBare designated as contact points at the district level to take up referrals from thePolice. Moreover, as recently confirmed by legal advice, the Police can referpersonal data of unruly children under 10 to SWD for follow up on the children'swell-being, when prevention of injury to life is at issue, even in the absence ofparental consent. Hence, the Police will make cross-departmental referrals forunruly children and young offenders even without parental consent if the Policeassess that there is a need to do so.

18. The Administration has further advised the Subcommittee that sinceOctober 2003, the Police have enhanced the accessibility of professional supportservices for unruly children below 10 who have come to Police attention byproviding them and their parents with an information leaflet containing usefulinformation on a wide range of services provided by both Governmentdepartments and NGOs. Such services include counselling for those withemotional problems, hotlines to seek information and immediate help, advice oneducation and career opportunities, and assistance for those with drug-relatedproblems. The Administration has pointed out that the content of theinformation leaflet would be further enriched to include website addresses ofmajor youth-related NGOs which organize programmes for juveniles and theirfamilies.

19. Some members of the Subcommittee have pointed out that there is a gapin the provision of services for unruly children who have committed minoroffences where the parents take no proper action to rectify the children'sbehaviour and do not consent to receiving follow-up support services. They areof the view that the Government should have a role to play in dealing with suchcases.

20. The Administration considers that in all cases, even when the offence isconsidered to be minor and isolated, and there are no other factors justifying areferral without parental consent, the child and the parents/guardians would begiven information on how to obtain support services. There are a wide range of

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programmes provided under the various schemes run by Government and NGOsfor unruly children and young offenders. The Administration would continue toenhance services in this regard to provide assistance to parents and their childrenincluding those who have committed minor offences and not been referred toSWD for follow-up services. The Administration has also explained that abalance has to be carefully struck between rendering assistance to children underthe minimum age of criminal responsibility and their parents, and avoiding"excessive" intervention targeted at them against their wish when the wrongfulact is considered to be trivial.

Family Support Conferences (FSCs)

21. The Consultancy Report recommends that upon referral by the JuvenileCourt in processing an application for a Care or Protection Order or by the Policewith parental consent, SWD may organize a FSC to draw together an unruly childaged below 10 (but not with the victim), the child's family and representatives ofpotential professional service providers to formulate welfare plans and providegreater support to the unruly child to prevent re-offending. A Care or ProtectionOrder may be issued if the child and his family members disagreed or failed toattend the conference.

22. The Administration considers that the recommendation is worth pursuing.The Administration advises that it has introduced, since October 2003, a pilotscheme on Family Conferences (FCs) for juveniles aged between 10 and below18 to bring together the offenders cautioned under the Police Superintendent'sDiscretion Scheme (PSDS), their family members and professionals from therelevant Government departments/NGOs to assess the needs of the offenders anddraw up a follow-up action plan to address the needs identified. The criteria forconvening a FC are as follows -

(a) the Police Superintendent exercising the caution under the PSDSconsiders that the juvenile is in need of the services of three ormore parties, e.g. the Police (JPS), SWD, EMB, NGOs, Departmentof Health, Hospital Authority etc; or

(b) the juvenile is given a second or further caution under PSDS.

The FCs operate on a voluntary basis with the consent of the parents/guardians ofthe juveniles. The decision as to whether a FC should be convened in aparticular case is vested in SWD, subject to the case-in-question meeting thecriteria of conducting FC.

23. The Administration has further informed the Subcommittee that subject toa positive outcome of a review to assess the effectiveness of FCs one year afterthe implementation of the scheme, and the feasibility of extending FCs tochildren under 10 years of age within the existing legal framework, the

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Administration stands ready to launch FCs for unruly children under 10 years ofage who are assessed to be in need of services of three or more parties and whoseparents consent to this course of action. Besides, the need for a Care orProtection Order will be thoroughly assessed by social workers having regard tothe individual circumstances of the child concerned and his/her family. Thedisagreement or non-attendance of the child and/or his/her parent(s) at the FCalone may not necessitate the application for a Care or Protection Order.

24. While generally in support of the consultants' proposal to introduce FSCs,some deputations opine that detailed guidelines and criteria for assessing the needfor holding FSCs should be developed, and the roles and responsibilities of theparticipating parties should be clearly defined. Adequate specialized trainingshould be provided to the persons who chair the FSCs.

Empowerment programmes for unruly children

25. The Consultancy Report suggests that the Police may, with parentalconsent, refer an unruly child to SWD to receive empowerment programmesprovided through the established network of selected ICYSCs with an aim toreducing offending and anti-social behaviour. Under the empowermentprogrammes, which would be coordinated and monitored by SWD, the unrulychildren will be provided with a range of purposeful activities that combinerecreational activities, social group and life skills training including anti-theftawareness, enhancement of self-esteem and resistance to peer pressure. ThePolice or SWD could revert to initiate a Care or Protection Order if the parentsdisagree or the child fails to attend the programme.

26. The deputations generally support the proposal. Some deputations havesuggested that the empowerment programmes could be incorporated into theexisting programmes of ICYSCs so as to avoid an undesirable labelling effect onthe children receiving the empowerment programmes. Some deputations havestressed that it is necessary to ensure that the social workers involved will beadequately equipped with the knowledge and skills for assessing the children'sneeds and counselling them.

27. The Administration has explained that the proposal to organize tailor-made programmes solely for unruly children would be difficult to implement asthe children may reside in different areas and display behavioural problems atdifferent times. The proposal may not be the best way of using scarce publicresources. The Administration supports some deputations' suggestion toincorporate empowerment programmes for unruly children into the existingprogrammes run by various agencies, including the programmes of ICYSCs/Integrated Family Service Centres/outreaching social work teams, etc. TheAdministration considers that it would be more practicable and cost-effective forthe social worker concerned to decide what programmes would best meet theneeds of the children. Besides, instead of issuing a Care or Protection Order

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whenever the parents or the child fails to attend the programme, the need for suchan Order will be thoroughly assessed by social workers having regard to theindividual circumstances of the child concerned and his/her family.

Community alternatives to institutional placements

28. The Consultancy Report proposes that when parents have difficulties inproviding care of adequate standard for their children, suitable placements withkin or in foster families should be explored as an alternative to the largerresidential homes that are currently being used for many children in such cases.

29. The deputations support the proposal and consider that adequate supportshould be provided to help foster families deal with the problems of unrulychildren.

30. According to the Administration, SWD will continue with its presentapproach that children should remain with their own families as far as possible.Where out-of-home care has to be considered, the children should be placed in ahome-like environment, e.g. with relatives, in foster homes or small group homes.SWD has increased the number of foster care places and small group homes overthe years and it is not in lack of such provision. A total of 165 foster care places(including 45 emergency foster care places) were introduced in 2002-03 and2003-04. As at June 2004, the total number of subvented foster care places andsmall group home places was 745 and 952 respectively. Placement of unrulychildren in a foster home is assessed against the children's needs, the extent oftheir behavioural problems, the readiness and acceptance of the foster parents andtheir ability to cope with the children's problems, etc.

Two options recommended for young offenders aged between 10 to below 18

Family Group Conferences (FGCs)

31. The Consultancy Report proposes that legislative amendments should beintroduced for the setting up of a separate unit attached to SWD with its ownfield staff with adequate training to organize FGCs for juveniles aged 10 to 17years in cases where the offence committed is a serious one. The basic purposeof a FGC is to consider ways to make the offender accountable for his acts, repairharm done to the victim and develop follow-up plan to guard against re-offending.Under the proposal, a FGC would be held upon referral by -

(a) the Police and the DoJ as a pre-charge diversion (in lieu ofprosecution) for offences which are relatively serious and forjuveniles who have a history of previous offending. If noagreement could be reached on the follow-up plan or the agreedtasks are not completed, the Police and DoJ may considerprosecution; or

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(b) the court as a pre-sentence diversion (not as an alternative toprosecution but to provide an opportunity for the offender to beaccountable for their behaviour before the Court makes a decision).

32. On the composition of FGCs, the Consultancy Report suggests that itshould include the conference facilitator, the offender and offender's familymembers, the victim and the victim's supporters, a Police Youth Officer, and anysignificant persons related to both the victim and the offender.

33. The deputations generally support the recommended introduction of FGCsas a restorative measure for young offenders, with involvement of the victims andother relevant parties. Some deputations suggest that -

(a) mandatory participation in FGCs should be imposed on theoffenders and their parents under special circumstances;

(b) there should be legislative provisions providing that the offendersmay be brought back to criminal justice system if they fail tobehave or complete the tasks assigned by FGCs;

(c) FGCs may be implemented by phases with development of clearguidelines and specialized training to the personnel concernedincluding the facilitator of the conference; and

(d) assessment panels could be established on a regional basis to assessthe needs of young offenders and recommend follow-up servicesand measures to deal with them.

34. The Administration has responded that the voluntary FC pilot scheme forcautioned juveniles implemented since October 2003 (paragraph 22 above) issimilar to the proposed FGCs in that both seek to provide more comprehensiveand professional assessment of service needs and make recommendations onsupport programmes for young offenders. The needs of the families would alsobe looked into. The participation of the parents is a prerequisite for conveningFCs and parents' involvement is emphasized throughout the process of FCs.With regard to training in the operation of FCs, SWD will be organizing sharingsessions for social workers taking part in FCs.

35. Concerning the deputations' suggestion to set up regional assessmentpanels, the Administration takes the view that the functions of the proposedassessment panels are similar to those of the existing FCs or the proposed FGCs,which seek to provide a forum for cross-sectoral and inter-disciplinaryassessment of the needs of unruly children/young offenders and makerecommendations on the appropriate follow-up services or programmes. Theestablishment of assessment panels would therefore be a duplication of efforts,

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and may unnecessarily prolong the process that unruly children/young offenderswill have to go through before they and their parents will receive appropriateservices or participate in suitable programmes.

36. Some deputations have pointed out that the FGCs proposed in theConsultancy Report are intended to be developed as a pre-charge/pre-sentencediversionary option to deal with offenders who have committed more serious andpersistent offences. The proposal incorporates a restorative justice approachaimed at making the offenders accountable and taking responsibility for theirconduct and repairing the harm done to the victims. The process of FGCs alsoinvolves the participation of the victims or their representatives among others,and may well include other concerned parties in the community, in agreeing onthe remedial tasks to be performed by the offenders. FGCs also serve as aforum for making recommendations for the consideration of the court. In theviews of the deputations, the proposed FGCs differ significantly from the pilotFC scheme in that FCs operate on an entirely voluntary basis, deal with relativelyminor offences committed by cautioned juveniles, and do not involveparticipation of the victims and their families. The pilot FC scheme, therefore,cannot fulfil the functions of FGCs. The deputations consider that the option ofFGCs should be actively explored.

37. With regard to the pilot FC scheme, some deputations agree that FCscould be used to deal with relatively minor offences, and welcome theAdministration's plan to extend the scheme to unruly children under 10. Theyopine that to maximize the effectiveness of the scheme, enhanced efforts shouldbe made to explain clearly to the children/young offenders and their parents thepurpose and operation of FCs and to encourage them to participate actively in theprocess. The procedures for convening FCs and making referrals should besimplified so that appropriate assistance and services could be provided speedily,and the follow-up actions should be effectively reviewed and monitored. Somedeputations consider that regardless of the decision on whether a FC should beheld, the case in question should be referred to social workers of the CommunitySupport Services Scheme for follow-up. Non-governmental social serviceorganizations should also be allowed to make recommendations to SWD on thenecessity of holding FCs for specific cases as they see fit.

38. Some deputations have also suggested that for those offenders who havecommitted a second offence, the Police should refer the case to SWD forassessing the need for a FC, prior to issuing a caution under the PSDS. In theirview, this would make the offenders and their parents more cooperative and morewilling to participate in FCs. One deputation has suggested that the welfaresector be involved in the review of the pilot FC scheme.

39. The Subcommittee has noted that section 15(1) of the Juvenile OffendersOrdinance (Cap. 226) provides for a variety of alternatives with which the courtmay deal with children or young persons found guilty, including dismissing the

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charge and discharging the offender on his entering into a recognizance. Somemembers have suggested that the Administration and the Judiciary should review,as a legal policy issue, whether the court should make use of such alternativesmore frequently in disposing cases in appropriate circumstances. Thepossibility of introducing legislative means to provide the court with additionalalternative measures to deal with young offenders should also be explored.

40. Some other members have suggested that the Administration shouldconsider implementing a pilot scheme to test the effectiveness of FGCs. Theypropose that the Police, SWD and DoJ should jointly decide whether an offendershould be referred to a FGC or be prosecuted. Some members have expressedconcern about the possibility of Police officers exercising excessive power inview of the important role they play in referring offence cases for follow-upaction. The members consider that it is important that frontline Police officersshould be made well aware of their responsibilities and powers to ensure thatthey can handle cases in a proper manner. Some members have urged theAdministration to strengthen the referral and follow-up mechanism, particularlythe systematic liaison between the Police, SWD and NGOs.

41. The Administration has explained that the suggestions regardingrestorative justice and the proposed FGCs as a diversionary measure wouldimpact on the current juvenile justice system. The Administration wouldconsider the relevant issues in the light of -

(a) the review on the pilot FC scheme for cautioned offenders(paragraph 22 above); and

(b) the feedback from the Judiciary Administration and DoJ on thedevelopment of a new juvenile justice system (paragraph 49below).

As regards the role of the Police, the Administration advises that it would becarefully assessed in implementing any new alternative measures.

Empowerment programmes for young offenders

42. The Consultancy Report proposes that as a pre-prosecution diversion, theProsecution may refer young offenders aged from 10 to 17 to receive skillstraining and perform voluntary services. Young offenders may also be asked toundergo empowerment programmes as referred by FGCs. The programme willfocus on training (60 hours) and community service (for three months). If theoffender fails to complete the programme, the case will be referred back to DoJfor consideration of prosecution, or to FGCs for consideration of further options,including referring the case to the court. The Consultancy Report recommendsthat the empowerment programmes be run by ICYSCs and be coordinated bySWD.

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43. Some deputations have suggested that specialized agencies should be setup to provide the empowerment programmes. Some deputations consider thatexisting youth services can be utilized to provide support to the offenders, andthat empowerment programmes should be provided to all young offenders andtheir parents. The Administration has responded that it would be more cost-effective for social workers to arrange for the programmes which are mostsuitable to the young offenders, making use of existing support services includingthe programmes of ICYSCs/Integrated Family Service Centres/District YouthOutreaching Social Work Teams etc. These services are available to all youngoffenders and their parents if they agree to take part in them.

44. Some deputations are of the view that empowerment programmes shouldbe made mandatory for the young offenders, who may be subject to prosecutionif they fail to complete the programmes satisfactorily. The Administrationconsiders that the proposal is linked to the concept of restorative justice and maybe examined in the context of the coming review on the development of a newjuvenile justice system.

Development of a new juvenile justice system

45. Members have expressed disappointment that the Administration has onlyproposed the following enhanced support measures targeted at unruly childrenand young offenders, in response to the recommendations of the ConsultancyReport -

(a) extension of JPS to unruly children below the age of 10 if thecircumstances of the case so justify (paragraph 16 above);

(b) further enhanced referral mechanism between the Police andSWD/EMB (paragraph 17 above);

(c) improved information leaflet (paragraph 18 above); and

(d) introduction of the pilot FC scheme for those aged between 10 andbelow 18 and possible extension of the pilot scheme to those agedbelow 10 (paragraphs 22 and 23 above).

46. Members consider that the Administration has made little progress in thedirection of the development of a new juvenile justice system. This is contraryto the advice given by the Administration to the Bills Committee on JuvenileOffenders (Amendment) Bill 2001 that it would consider the findings andrecommendations of the consultancy study in reviewing the juvenile justicesystem. Members urge the Administration to take early and positive steps totake forward the development of a new juvenile justice system featuringrestorative and reintegrative principles and practices, taking into account

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developments in overseas jurisdictions and the views expressed by members andthe deputations.

47. The deputations are supportive of the move to develop new measuresalternative to prosecution under a restorative justice approach. They considerthat with the increase in the minimum age of criminal responsibility to 10 years,new options should be explored to prevent early criminalization of youngoffenders, and to help to divert them from going further astray. They supportthe longer-term development of a new juvenile justice system, which involves theparticipation of all concerned parties, based on the underlying principles ofrestorative justice. One deputation has cautioned that in contemplating changesto the existing juvenile justice system, the impact of any new measures on therights of the victims, the rights of the accused persons and their families, and theobservance of due process have to be carefully assessed.

48. Some deputations have also referred to the recommendation of DoJ topromote the interests of victims of crime and witnesses by introducing a limitedsystem of restorative justice as an alternative to prosecution for young offendersaged 10 to 17 (statement made by the Director of Public Prosecutions in hisstatement made in April 2004 on "The Yearly Review of the ProsecutionsDivision 2003" refers). Under the recommendation, victims and offenders canmeet with the assistance of a trained mediator as part of a healing process. Thedeputations urge the Administration to widely consult and involve the relevantNGOs providing support services to young offenders in taking forward therecommendation.

49. The Administration has advised the Subcommittee that it is necessary toapproach the findings and recommendations of the Consultancy Report withcautions because of the far-reaching implications. The Administration considersthat the relatively limited overseas experience to demonstrate the effectiveness ofthe proposed alternative measures would have to be examined in the light of theexisting services already in place as well as the social and legal situations inHong Kong. The Administration has agreed that it would review theeffectiveness of the pilot FC scheme before deciding on the development of anew juvenile justice system in consultation with DoJ and the JudiciaryAdministration, and report to LegCo in the next term.

Recommendation

50. The Subcommittee recommends that the Administration should consult theNGOs in the welfare sector on the review of the juvenile justice system in HongKong.

51. The Subcommittee recommends that the Administration should report toLegCo in the new term on the following matters -

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(a) the effectiveness of the enhanced support measures introduced bythe Administration since October 2003; and

(b) the outcome of the review on the development of a new juvenilejustice system incorporating the principles and practices ofrestorative justice.

52. The Subcommittee also recommends that the Administration shouldsubmit its report(s) for the consideration of the relevant Panel(s). Whereconsidered appropriate, the Panel(s) may recommend to the House Committee forthe setting up of a subcommittee to follow up the relevant issues.

Advice sought

53. Members are invited to note the recommendation of the Subcommittee.

Council Business Division 2Legislative Council Secretariat23 June 2004

立法會立法會立法會立法會Legislative Council

Ref : CB2/BC/2/01LC Paper No. CB(2) 1358/02-03

Report of the Bills Committee onJuvenile Offenders (Amendment) Bill 2001

Purpose

1. This paper reports on the deliberations of the Bills Committee on theJuvenile Offenders (Amendment) Bill 2001.

Background

2. Under the Juvenile Offenders Ordinance (Cap 226), it is conclusivelypresumed that no child under the age of seven can be guilty of an offence.Between the age of seven and 14, there is a presumption of doli incapax underthe common law, that is, a child is presumed to be incapable of committing acrime, unless the presumption is rebutted by the prosecution on proof beyondreasonable doubt that, at the time of the offence, the child is well aware that hisact is seriously wrong as distinct from an act of naughtiness or childish mischief.If this presumption is rebutted, full criminal responsibility will be imposed on thechild who can then be charged, prosecuted and convicted for any offenceallegedly committed.

3. In recent years, there have been calls in Hong Kong for the minimum ageof criminal responsibility to be raised. Those favouring a change argue that it isundesirable to subject young children who are still socially and mentallyimmature to the full panoply of criminal proceedings, with their attendantsanctions and stigma. These demands have been echoed by the United NationsCommittee on the Rights of the Child (UNCRC), and by the United NationsCommittee on the International Covenant on Civil and Political Rights (ICCPR).These bodies have called for a review of the law in Hong Kong in the light of theprinciples and provisions of the United Nations Convention on the Rights of theChild and the ICCPR.

4. In 1998, the Law Reform Commission (LRC) was asked to review the lawregarding the minimum age of criminal responsibility and the presumption ofdoli incapax and to consider such reforms as might be necessary. Following apublic consultation exercise on the subject in 1999, LRC published its "Report onthe Age of Criminal Responsibility in Hong Kong" in May 2000.

Appendix I

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5. The LRC Report recommends, inter alia, that –

(a) the minimum age of criminal responsibility should be raised fromseven to 10 years of age; and

(b) the rebuttable presumption of doli incapax should continue to applyto children of 10 and below 14 years of age.

The Bill

6. The Bill seeks to implement LRC's recommendation by amending section3 of the Juvenile Offenders Ordinance (Cap. 226) to raise the minimum age ofcriminal responsibility from seven years of age to 10 years of age. It alsointroduces consequential amendments to the Reformatory Schools Ordinance(Cap. 225).

The Bills Committee

7. At the House Committee meeting on 14 November 2001, Members agreedto form a Bills Committee to study the Bill. Under the chairmanship of HonMargaret NG, the Bills Committee has held seven meetings, including onemeeting to listen to views of deputations. The Bills Committee has also visitedthe Central District Police Station and received a briefing on the operation of thePolice Superintendent's Discretion Scheme (PSDS).

8. The Bills Committee has invited the public, and those individuals andorganisations that had previously made submissions to LRC, to give views on theBill. A total of 21 organisations /individuals have made submissions to the BillsCommittee, and 12 of them have also made oral representations at a meeting ofthe Bills Committee.

9. To assist the Bills Committee in its deliberation, the Research and LibraryServices Division has prepared two information notes on the legislation andpractices in dealing with juvenile offenders in Canada, the United Kingdom (UK)and Singapore.

10. The membership list of the Bills Committee is in Appendix I. The listof organisations and individuals that have given views to the Bills Committee isin Appendix II.

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Deliberations of the Bills Committee

Minimum age of criminal responsibility

11. The Bills Committee has discussed the policy considerations for thelegislative proposal of setting the minimum age of criminal responsibility at 10years, and retaining the rebuttable presumption of doli incapax for children aged10 to below 14 years. While the Bills Committee and deputations generallyagree that the existing minimum age of criminal responsibility should be raised,they have different views on whether the minimum age should be set at 10, 12 or14 years.

Minimum age of criminal responsibility in other jurisdictions 12. The Bills Committee has noted that there is no authoritative research orstudy on what should be the minimum age of criminal responsibility, as itdepends on the social and cultural background of different communities, and thedegree of maturity among children. During its deliberation, the BillsCommittee has made reference to the minimum age of criminal responsibility inother jurisdictions and their experience.

13. The LRC Report on the Age of Criminal Responsibility in Hong Kong haspointed out that there is considerable disparity among different jurisdictions as tothe minimum age of criminal responsibility, ranging from seven to 18 years, andHong Kong's current minimum age of seven is at the lowest end.

14. The Bills Committee has noted that in Canada, the minimum age ofcriminal responsibility has recently been raised from the established common lawrule of seven to 12 years of age. In the UK, the minimum age of criminalresponsibility is 10 years in England and Wales, and there are a number ofoptions available to the police and the court for handling a juvenile offender agedbetween 10 and 14 years.

15. In Mainland China, a child who has not attained the age of 14 is exemptfrom criminal responsibility. Under Article 17, Chapter 2 of the Criminal Lawof the People's Republic of China, a person who has attained the age of 16 shallbe criminally responsible for the crime committed. However, for a person whois 14 years of age but is below 16 years, and has committed serious offences suchas intentional killing, rape, arson drug trafficking, etc., he will be criminallyresponsible for the offence committed.

16. In Taiwan, a child who has not attained the age of 14 years will not bepunished for his act. An order will instead be made for him to be sent to arehabilitation centre where rehabilitating education will be provided.

17. In Singapore, the minimum age of criminal responsibility is seven years.The Children and Young Persons Act 1993 in Singapore provides a legal basisfor the protection and intervention by relevant authorities if a child (below the

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age of 14) or young person (from 14 years to below 16 years) is found to beabused or neglected.

18. The Administration is of the view that any attempt to draw conclusionsfrom comparisons with other jurisdictions in respect of the age of criminalresponsibility should be treated with care. The Administration considers thatthe underlying legal framework to which the age of criminal responsibilityapplies is of greater significance. In this connection, the Administration haspointed out that the majority of common law jurisdictions maintain an age ofcriminal responsibility of 10 years or less.

19. A list of the age of criminal responsibility in other jurisdictions is given inAppendix III.

Views of organisations and individuals

20. All the 21 organisations/individuals that have given views on the Billsupport raising the minimum age of criminal responsibility. Of these, 14support raising it to 10 years, one (the Hong Kong Bar Association) supportsraising it to 12 years, and six are in favour of raising it to 14 years. Some ofthem have pointed out that it is the international trend to raise the minimum ageof criminal responsibility.

21. For those organisations and individuals that support raising the minimumage of criminal responsibility to 14 years, they are of the view that thedevelopment process of children is such that a child under the age of 14 is unableto appreciate the gravity and consequences of his actions, nor is the child capableto comprehend criminal proceedings. The traumatic experience of beingcriminally prosecuted and convicted at such a young age will impose a stigma ona child and destroy his self-esteem which will not do any good to the effectiverehabilitation of the child. Some have also said that the UNCRC has criticisedjurisdictions in which the minimum age is 12 years or less.

22. These deputations have also pointed out that in other jurisdictionsincluding the People's Republic of China and Taiwan, the minimum age ofcriminal responsibility is set at 14 years. Moreover, other legislation in HongKong such as the Evidence Ordinance and the Criminal Procedure Ordinancerecognise the age of 14 being the age at which a child can reliably be said to havereached maturity.

23. Some other organisations and individuals support raising the minimumage to 10. Among them, some opine that it is acceptable for the Administrationto adopt a step-by-step approach in raising the minimum age to 10 years in thefirst instance, and subsequently raising it to 12 or 14 years after a comprehensivereview on the existing measures for dealing with unruly children. Some of themconsider the Administration's proposal a pragmatic approach, with a few considerthis a very modest step in the right direction. These organisations andindividuals agree that the present approach strikes a balance between

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safeguarding the interests of children and those of the community, and they alsourge for the provision of more comprehensive support/rehabilitative services forjuvenile offenders. Some of these organisation have expressed the view thatfurther raising the minimum age to 12 or 14 years in the absence of adequatesupport services for those below the minimum age will increase the possibility ofexploitation of children by adult criminals.

24. The Hong Kong Bar Association has given the view that while raising theminimum age of criminal responsibility to 10 years is the minimum step in theright direction, it will be more appropriate to raise it to 12 years.

Members' views

25. Members of the Bills Committee generally share the view that it is theresponsibility of society and parents to teach children right from wrong and toassist children in their development. The approach should be to rehabilitaterather than to punish juvenile offenders, particularly when most of the offencesthey committed were of a relatively minor nature (such as shop theft). In thisconnection, members consider it important to provide adequate support andrehabilitative services for juvenile offenders, and not merely amend the law toraise the minimum age of criminal responsibility.

26. Members have expressed concern whether it is appropriate to bring a childbetween 10 and 14 years to formal court proceedings which have adverse effectson his emotional and psychological development. They consider that criminalproceedings cannot help a child understand his wrongdoings, and some parentsmay advise their children not to admit their wrongdoings for fear of creating acriminal record of the child. Some members propose that there should be analternative mechanism to the criminal court proceedings to facilitate the re-integration of juvenile offenders into the community.

27. The majority of members are in favour of raising the minimum age to 12years, as an interim measure pending the comprehensive review as recommendedby LRC (paragraph 61). These members consider that a child of 10 years oldcannot possibly distinguish the right from wrong, and even for those more maturechildren, they cannot fully appreciate the consequences of their wrongdoings andthat of criminal proceedings. They have also noted that very few childrenbelow 10 years of age were arrested and charged for crime in past years, andmost of the offences committed by children below 12 years of age were notserious in nature. These members consider that the minimum age should be setat 12 years, which is the usual age when a child has completed primary schooleducation and acquired some understanding of the consequences of their acts.

28. Members who support raising the minimum age of criminal responsibilityto 12 years have stressed the importance for children to receive proper guidanceand services to enable them to re-integrate into the community. They are of theview that merely raising the minimum age to 10 years in law is too modest a stepand will not bring much improvement to the current systems or render more

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protection to the children. They have also urged the Administration to expediteactions to improve the existing mechanisms for the care and protection ofchildren below the revised minimum age.

29. Hon TSANG Yok-sing and Hon LAU Hon-chuen, however, consider thatthe Administration's proposal of raising the minimum age to 10 years acceptable,given that the presumption of doli incapax will be retained for children agedbetween 10 and 14, and the Administration has undertaken to conduct a reviewon ways to bridge the gap in the provision of services for children below therevised minimum age. They consider it necessary to ensure adequate servicesare available for children below the minimum age of criminal responsibilitybefore it is raised further. They share the view that without adequate supportservices for children at risk and those below the minimum age, there will be alower chance for these children to be brought to the attention of professionals andsocial workers, as compared with children above the minimum age who aresubject to the existing PSDS and referral systems.

30. At the meeting on 2 December 2002, the Bills Committee took a vote onwhether the minimum age of criminal responsibility should be raised to 10 or 12years. Six out of the eight members present at the meeting voted in favour ofraising the minimum age to 12 years. The Administration was subsequentlyrequested to consider whether it would propose the amendments.

31. At the Bills Committee meeting on 22 January 2003, the Administrationinformed members that it maintained its view that the minimum age should beraised to 10 years in the first instance, pending a review to be conducted on themeasures to deal with unruly children. The Administration advised that raisingthe minimum age to 12 years could result in possible loss of opportunities forintervention regarding children at risk, as those below 12 years would beexcluded from the PSDS. The Administration pointed out that according to pastyears' statistics, there had been a considerable increase in the number of arrestedchildren aged from 10 years onwards. On average, 478 children aged between10-11, which was about three times of those aged below 10 (between 7-9), werearrested for crime in a year during the period 1993-2001. The figure for thoseaged 12-13 rose even more significantly to an average of 1 934 during that period,representing more than 10 times of that for children aged below 10. Thenumber of juvenile offenders (age 7 to 14) prosecuted and convicted in 1993 to2001 is provided in Appendix IV.

32. The Administration also advised that it had commissioned a consultancystudy on measures in handling unruly children with a view to filling the gap ofprovision of services for children and juveniles at risk after raising the minimumage to 10 years (paragraph 62). The Administration also undertook to proposeraising the age further from 10 to 12 years after completion of the consultancystudy, when putting forward proposals to provide additional supportive measuresfor unruly children below the minimum age after taking into account the findingsof the consultancy study (paragraph 62).

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33. The Bills Committee took a vote at the meeting on whether CommitteeStage amendments (CSAs) should be moved by the Bills Committee to raise theminimum age to 12 years. Three out of the four members present voted infavour of the Chairman of the Bills Committee moving CSAs to raise theminimum age to 12 years.

34. Hon TSANG Yok-sing indicated at the meeting on 22 January 2003 thatwhile Members belonging to the Democratic Alliance for Betterment of HongKong (DAB) agreed that the existing system(s) in dealing with juvenile offendersneeded improvements, they were concerned that further raising the minimum ageof criminal responsibility to 12 years might not bring any real benefits to theyoung offenders if there were inadequate supportive measures for those belowthe minimum age. Members belonging to DAB were therefore in favour of theAdministration's proposal of raising the revised minimum age to 10 years.

Impact on existing services if the minimum age is raised to 10 years

35. The Bills Committee has asked about the impact on existing services if theminimum age is raised. The Administration has advised that raising theminimum age to 10 years will only have minimal effect on the probation serviceand reformatory school service, because no offender aged under 10 years hasbeen placed on such services in the past few years. In fact, where appropriate,offenders under the age of 10 years would mostly be put under care or protectionorder due to their tender age.

Rebuttable presumption of doli incapax

36. At present, for children who have reached the minimum age of criminalresponsibility and are under 14 years old, there is a rebuttable presumption ofdoli incapax under the common law, i.e. a child within this age range ispresumed to be incapable of committing a crime unless the presumption isrebutted by evidence.

37. The Administration has proposed to retain this presumption of doliincapax for children aged between 10 and 14 years after revising the minimumage to 10 years. This means after the enactment of the Bill, prosecution will notbe instituted against children aged between 10 and 14 years unless thepresumption of doli incapax can be rebutted. The Administration believes thatthe arrangement will safeguard the interests of the children by allowingdiscretion whether to prosecute after considering the individual child's level ofmaturity, and also provide adequate flexibility to take care of those children whohave reached the minimum age but are insufficiently mature. Retention of thepresumption also ensures that only children who are able to appreciate that theircriminal acts are seriously wrong will be made criminally responsible.

38. Some deputations are of the view that the presumption of doli incapax isconceptually obscure. However, as the Bill only proposes raising the minimumage to 10 years, most deputations consider that it is necessary to retain the

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presumption of doli incapax for children aged between the revised age and 14years, until the minimum age is raised to 14 years. They also consider that theburden of rebutting the presumption should continue to rest with the prosecutionbecause children aged under 14 years have only limited ability to defendthemselves and limited understanding of court proceedings.

39. The Bills Committee supports retaining the presumption of doli incapaxfor children aged between the revised age and below 14 years, in order tosafeguard the interests of the children who are above the revised minimum agebut are below 14 years of age. This will ensure that only mature children areheld criminally responsible for their acts.

Police Superintendents' Discretion Scheme

Effectiveness of the scheme

40. In discussing measures other than the criminal justice system in dealingwith juvenile offenders, the Bills Committee has noted that PSDS is frequentlyused as an alternative to criminal prosecution in respect of a young offenderbelow the age of 18 years. Instead of subjecting the child to criminalprosecution, a formal caution or warning as to his conduct is given by a PoliceSuperintendent to the child.

41. The Administration has informed the Bills Committee that one importantcriterion for giving a caution under PSDS is that there is sufficient evidence tosupport prosecution and that prosecution is the only alternative course of action.The offender must voluntarily and unequivocally admit the offence and has noprevious criminal record. Moreover, a caution will only be given with theagreement of the offender and his parents or guardian. As regards the concernabout possible inconsistency among different police officers in deciding whetherto prosecute a juvenile offender or caution him under PSDS, the Administrationhas assured members that there are established guidelines for the administrationof cautions under PSDS and the decision is taken by a Police Superintendent.

42. The Bills Committee has noted that a total of 3,585 juvenile offenders(41% of those arrested) were cautioned in 2001. About 70% and 46%respectively of those children aged 7-12 years and 13-15 years arrested in 2001were cautioned under PSDS. The re-arrest rates of children cautioned underPSDS in 2001 are 2.5%, 7.1% and 15.5% respectively for children within the agebrackets of 7-9 years, 10-11 years and 12-13 years.

43. The Administration is of the view that PSDS is a very effectivemechanism in dealing with juvenile offenders. Under PSDS, a child can bewarned of the serious consequences of having committed an offence, withouthaving to go through the traumatic experience of being prosecuted and convictedat a young age, and the possible stigma of a criminal record.

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Keeping of records

44. Some members have expressed concern about the keeping of records ofcautions made under the PSDS. The Administration has explained that theserecords are only kept for two years or until the child cautioned has reached 18years of age, whichever is the later. The purpose of keeping such record is toenable the Police to have a better assessment of the background of a youngperson and also his needs for support services, if he is re-arrested before reachingthe age of 18 years or the expiry of the two-year period.

Offenders' participation in follow-up services

45. Members have expressed concern that there is no mandatory requirementfor an offender cautioned under PSDS to participate in support and rehabilitativeprogrammes. These children may again go astray if there is no effectivemonitoring of their performance and behaviour after release. Some membersconsider that the Administration should put in place more effective measures toensure active participation of the cautioned offenders and monitoring by theirparents or guardian.

46. The Administration has explained that depending on the needs of thejuveniles, the Police Superintendent administering the caution may refer the caseto the Social Welfare Department (SWD), Education and Manpower Bureau(EMB) and non-government organisations (NGOs) for after-care services.Participation of the cautioned offender and/or his parents insupportive/rehabilitative programmes is entirely voluntary. However, the PoliceSuperintendent will encourage the offender to participate in such programmesand also persuade their parents to cooperate and get involved in monitoring theirparticipation. In addition, the Juvenile Protection Section (JPS) of the Policewill conduct follow-up visits to the cautioned offenders' homes to monitor theirparticipation in supportive services. The JPS also liaises with the SWD, EMBand NGOs to follow up on problematic cases.

Conditional release

47. Some members have suggested that a "conditional release" mechanismshould be put in place, so that the young offender must successfully complete thesupport/rehabilitative programmes before a decision is taken on whether toprosecute him or not. Under this proposal, if a young offender refuses toparticipate or does not complete satisfactorily the support/rehabilitativeprogrammes, he may be prosecuted instead of cautioned under PSDS. Membershave pointed out that Canada has implemented a similar measure.

48. The Administration has responded that the proposal requires thoroughconsideration as it provides a new option in lieu of prosecution. It has alsoadvised that the decision to prosecute involves a consideration of the evidenceand public interest. Whether the juvenile offender admits the offence or showsgenuine remorse and a willingness to make amends, such as participation in

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rehabilitative programmes, are only some of the factors which will be taken intoconsideration. The Administration is of the view that whether a juvenileoffender participates in the rehabilitative programmes satisfactorily can only bejudged after a reasonable period of time. Should it be subsequently confirmedthat the juvenile offender failed to perform satisfactorily, extra caution will berequired as to whether to charge and bring him to court, as his right to trialwithout delay is guaranteed under Article 11 of the Hong Kong Bill of Rights aswell as Article 87 of the Basic Law.

49. In view of the wide implications of the proposal on conditional release ofjuvenile offenders, the Administration has advised that it will consider thefeasibility of the proposal comprehensively, taking into account overseasexperience in implementing similar schemes and their effectiveness.

Support services for juvenile offenders and children at risk

Family group conference

50. Members of the Bills Committee have suggested that a formalised systemshould be put in place requiring the Police, as soon as a child is arrested, toinvolve the parents and professionals (such as social workers, teachers andpsychologists), in the process of determining the appropriate course of action forthe child. Some members have further suggested that a mechanism of familygroup conferencing should be provided in law or through administrative means,as similar systems have been implemented in overseas jurisdictions such asCanada. The purpose of holding a family group conference is to ensure that thechild's needs and welfare are fully assessed and appropriate services are renderedimmediately. These members are concerned that these children, particularlythose below minimum age, will go astray again after release.

51. The Administration has advised that the Police has no power to arrest achild below the minimum age as the latter cannot be held liable for havingcommitted criminal acts. When the Police is informed that a young child issuspected of having committed an offence, the police officer will investigate thecase and inform the parents of the child and try to ascertain the age of thesuspected child. Once it is confirmed that a child suspected of havingcommitted a crime is below the minimum age, the child will be releasedunconditionally. The Administration has stressed that the cooperation of theparents of those children below the minimum age is necessary in makingassessments on the child's needs and for holding a family group conference.

52. The Administration has also informed members that for children belowthe minimum age, the Police can apply to the court for care or protection orders(paragraph 54), or make referrals to SWD, EMB and NGOs (paragraphs 56-60).However, to address members' concerns, the Police will take the following newmeasures to persuade the parents of such children to receive the necessarysupport services -

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(a) issuing information leaflet on available services to parents ofchildren who come to the attention of the Police;

(b) setting up direct liaison points between the Police and SWD andEMB to ensure timely referral; and

(c) drawing up separate guidelines for the Police to refer cases to SWDand EMB with parents' consent.

53. The Administration has also proposed that family group conference can beheld for juveniles cautioned under the PSDS, subject to the parents' consent,when either of the following criteria is met-

(a) the Superintendent exercising the caution considers that thejuvenile cautioned is in need of services of three or more parties; or

(b) the juvenile is given the second or further caution.

The Administration's target is to hold the conference within 10 working daysfrom the date of juvenile's caution. The conference will discuss and draw up aplan of services or programmes to be given to the juvenile. Subsequentconference will be called on a need basis.

Care or protection order

54. The Administration has informed members that a care or protection ordermay be made under section 34 of the Protection of Children and JuvenilesOrdinance (Cap. 213) in respect of any person below the age of 18 years who isin need of care or protection. The objective of subjecting a child to a care orprotection order is to ensure that the child will be put under proper guidance andcare. Such orders may be made by a juvenile court on its own motion, or on theapplication of the Director of Social Welfare (DSW) or any police officer, or onthe application of any person authorised by DSW. Circumstances for a care orprotection order to be made include cases where a child's health, development orwelfare has been or appears to be likely to be neglected or avoidably impaired, orhe is beyond control to the extent that harm may be caused to him or others.

55. Some members of the Bills Committee have expressed concern that thescope of care or protection order may not be able to cover those who are at riskbut have not committed any offence. The Administration has advised that achildren at risk include those who have not committed criminal offences but arelikely to commit criminal offences. There have been cases in which SWDrecommended a care or protection order where a criminal charge against a childfor minor offences was dismissed by the court. The Administration is of theview that the present scope for application of care or protection orders asspecified under section 34 of the Protection of Children and Juveniles Ordinanceis sufficiently broad and general in justified cases to cover children and juvenilesat risk, including those who have been convicted, those who are likely to commit

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criminal offences and those who are under the minimum age of criminalresponsibility.

Referral for services

56. The Administration has informed members that if the circumstancessurrounding a child arrested for crime are less serious and do not warrant a careor protection order, and yet the Police consider that the child is in need ofassistance in order to prevent them from going astray, the Police will refer thecase to the appropriate parties, including SWD and EMB, for follow-up actionsunder the existing multi-agency strategy in tackling juvenile crimes.

57. Some members have expressed concern that different police officers mayapply different standards in making referrals for services, and they may not havethe necessary training for evaluating the needs of a juvenile. Members haveurged the Administration to provide clear guidelines to police officers on referralfor services.

58. To address members' concerns, the Administration has providedinformation on the existing referral system and the different services provided bySWD, EMB and NGOs. To make the referral system more systematic, thePolice has agreed to draw up criteria for referrals to be made to other departmentsor agencies for follow-up action. To ensure referrals will be made in anefficient and timely manner, the Police will establish a direct liaison point withSWD at the district level. When any child who is below the minimum age andis considered to be in need of services comes to the attention of the Police,frontline police officers handling the cases will directly refer the cases to therelevant District Social Welfare Offices of SWD. Officers in the District SocialWelfare Offices will assess the needs of the children, render services to them orrefer them to appropriate agencies for follow-up.

59. The Administration has also advised that children and youth who arefound to be school drop-outs will be referred to EMB. To help children toovercome their adjustment and development problems, EMB has also launchedprogrammes involving schools, teachers, parents and the community.

60. For those children who have been cautioned under PSDS, theAdministration has advised that a range of after care services are providedthrough the Police Juvenile Protection Section, the Community Support ServiceScheme (run by the NGOs), the SWD and the EMB. In the years 1999, 2000and 2001, the numbers of referrals made under PSDS were 2,724, 3,702, and3,500 respectively.

Review on the juvenile justice system and the consultancy study

61. Members have noted that LRC recommended in its "Report on the Age ofCriminal Responsibility in Hong Kong" that the Administration should conduct ageneral review on the juvenile justice system. The purpose of the review is to

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ensure that there are effective alternatives to prosecution which on the one handprovide adequate security to the community, and on the other hand prevent errantyoungsters from degenerating into hardened criminals.

62. The Administration has informed the Bills Committee that it hascommissioned a consultancy study to provide information on measures adoptedby overseas countries in handling unruly children below the minimum age ofcriminal responsibility and mischievous juveniles above the minimum age. Theinformation will facilitate the Administration to identify measures to fill the gapof provision of services for children and juveniles at risk after the minimum ageis raised to 10 years.

63. In response to members, the Administration has advised that theconsultancy study commenced in September 2002 and is expected to complete inmid-2003. When the consultancy report is available, the Administration willconsider the findings therein and conduct consultation as necessary beforeputting forward proposals for consideration by LegCo.

64. Some members of the Bills Committee have expressed concern that thepresent proceedings and procedures in juvenile courts would have adverse impacton the development of a child. They consider that the juvenile justice systemshould aim at re-integration and rehabilitation rather than criminalisation andpunishment.

65. The Administration has provided information on the present proceedingsof juvenile courts, in particular, how the interests of children and young personswho have to appear in courts are taken care of during court proceedings. TheAdministration has advised that the juvenile court has jurisdiction to hear chargesagainst children (aged between 7-14) and young persons (aged over 14 and under16) for any offence other than homicide. The juvenile court also has power todeal with care or protection cases involving children and young persons under theage of 18. Procedure in a juvenile court is less formal than in a magistrate'scourt, and the juvenile court has the duty to put to the witness such questions asappear to be necessary in the interests of the child or young person.

66. According to information provided by the Administration, in determiningthe method of dealing with a child or young person who has admitted an offenceor the court is satisfied of his guilt, the juvenile court will obtain suchinformation, may be by way of calling pre-sentencing reports, as to thedefendant's general conduct, home surroundings, school record and medicalhistory. The objective is to enable the court to deal with the case in the bestinterest of the child or the young person. Where a child or young person isfound guilty of an offence punishable in the case of an adult with imprisonmentand the court considers that no other method is suitable, the court may order thechild or young person to be detained in a place of detention as DSW maydetermine.

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67. As the review of juvenile justice system involves policy matters which areoutside the scope of the Bill, the Bills Committee suggests that the Panel onAdministration of Justice and Legal Services should be invited to consider whatimprovements should be made to the juvenile court system, and follow up on thefindings of the consultancy study commissioned by the Administration.

Transitional arrangements

68. The Administration has informed members that it will move a CSA to theeffect that no prosecution will be instituted against a child in respect of anoffence committed before the Bill comes into operation, if at the time the offencewas committed the child was of an age which would not be liable to prosecutionhad the offence been committed after the commencement of the Bill.

Consequential amendments

69. Under existing section 19(2) of the Reformatory School Ordinance(Cap.225), a young offender under the age of 10 who is sentenced to aReformatory School may be boarded out of the School under specified conditionsuntil he reaches the age of 10 years. Since the enactment of the Bill willirrebuttably presume children aged under 10 to be incapable of committing crimeand therefore cannot be prosecuted, no children under the age of 10 will beadmitted to a Reformatory School thereafter. The Administration has advisedthat section 19(2) of the Reformatory School Ordinance will become obsoletewhen the enacted Bill comes into operation, and a CSA will be made to repealthis section as a consequential amendment.

Committee Stage Amendments

70. The Administration has proposed Committee Stage amendments (CSAs)as described in paragraphs 68 and 69 above.

71. Hon Margaret NG will also move CSAs, on behalf of the Bills Committee,to raise the minimum age of criminal responsibility to 12 years (paragraph 33above).

Follow up actions required

72. The Administration has undertaken to propose raising the age further from10 to 12 years of age when it puts forward proposals to provide additionalsuggestion measures for unruly children below the minimum age (paragraph 32).

73. The Bills Committee has suggested that the Panel on Administration ofJustice and Legal Services should follow up -

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(a) what improvements should be made to the existing juvenile courtsystem and proceedings (paragraphs 64-67); and

(b) the recommendations of the consultancy study on the review ofservices for juvenile offenders (paragraphs 61-63).

Recommendation

74. The Bills Committee supports the resumption of the Second Readingdebate on the Bill on 12 March 2003.

Consultation with the House Committee

75. The Bills Committee consulted the House Committee on 28 February2003 and obtained its support for the Second Reading debate on the Bill to beresumed.

Council Business Division 2Legislative Council Secretariat3 March 2003

Appendix I

Bills Committee onJuvenile Offenders (Amendment) Bill 2001

Membership list

Chairman Hon Margaret NG

Members Hon Cyd HO Sau-lan

Hon Jasper TSANG Yok-sing, GBS, JPHon Miriam LAU Kin-yee, JPHon Ambrose LAU Hon-chuen, GBS, JPHon LAW Chi-kwong, JPHon Michael MAK Kwok-fungHon WONG Sing-chiHon Audrey EU Yuet-mee, SC, JP

(Total : 9 Members)

Clerk Mrs Constance LI

Legal Adviser Mr LEE Yu-sung

Date 26 September 2002

Appendix II

Organisations / individuals that have given views to theBills Committee on

Juvenile Offenders (Amendment) Bill 2001

* 1. Against Child Abuse

* 2. The Boys' & Girls' Clubs Association of Hong Kong

* 3. Caritas Outreaching Social Work Team - Aberdeen

* 4. Hong Kong Christian Service

* 5. Hong Kong Committee on Children's Rights

* 6. The Hong Kong Family Law Association

* 7. Hong Kong Family Welfare Society

* 8. The Hong Kong Federation of Youth Groups

* 9. The Hong Kong Psychological Society Limited

* 10. Wong Tai Sin District Council

11. The Hong Kong Council of Social Service

12. Fight Crime Committee

13. Home Affairs Bureau

14. Hong Kong Bar Association

15. The Law Society of Hong Kong

16. St John's Cathedral Counselling Service

17. Tai Po District Fight Crime Committee

* 18. Mr Andrew Bruce, SC

* 19. Dr Nirmala Rao

* 20. Ms Corinne Remedios

21. Mr YEUNG Wai-sing, Eastern District Councillor

* Organisations/individuals that have also given oral representations to the BillsCommittee.

Appendix II

Subcommittee on juvenile justice system

Membership List

Chairman Hon Margaret NG

Members Hon Cyd HO Sau-lan

Hon LEUNG Yiu-chung (up to 23 February 2004)

Hon Miriam LAU Kin-yee, JP

Hon Emily LAU Wai-hing, JP

Hon LI Fung-ying, JP

Hon Michael MAK Kwok-fung

Hon WONG Sing-chi

Hon Audrey EU Yuet-mee, SC, JP

(Total : 8 Members)

Clerk Mrs Percy MA

Legal Adviser Mr LEE Yu-sung

Date 26 November 2003

Appendix III

List of papers considered by Subcommittee on juvenile justice system

Papers provided by the Administration

Consultancy Report on "Measures Alternative to Prosecution for Handling UnrulyChildren and Young Persons : Overseas Experiences and Options for Hong Kong"

LC Paper No. CB(2)735/03-04(01) -- Administration's paper on theConsultancy Report

LC Paper No. CB(2)1237/03-04(02) -- Paper from Dr LO Tit-wing, theConsultant, on issues raised at themeeting on 18 December 2003

LC Paper No. CB(2)1659/03-04(01) -- Administration's paper on therecommendations of the ConsultancyReport

LC Paper No. CB(2)2291/03-04(01) -- Administration's paper on the views putforward by the Subcommittee anddeputations

LC Paper No. CB(2)2339/03-04(01) -- Administration's paper on issues raised atthe meeting on 12 March 2004

LC Paper No. CB(2)1721/03-04(01) -- Information leaflet on services providedby Government departments and non-government organizations for unrulychildren and young persons

Papers prepared by the Legislative Council Secretariat

LC Paper No. CB(2)246/03-04 -- Report of the Panel on Administration ofJustice and Legal Services and Panel onSecurity to the House Committeemeeting on 7 November 2003

LC Paper No. CB(2)429/03-04(02) -- Background paper prepared by theSecretariat

Submissions from deputations

LC Paper No. CB(2)1128/03-04(01) -- Submission from The Boys' & Girls'Clubs Association of Hong Kong

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LC Paper No. CB(2)1128/03-04(02) -- Submission from Evangelical LutheranChurch Social Service Hong Kong

LC Paper No. CB(2)1128/03-04(03) -- Submission from The Hong KongFederation of Youth Groups

LC Paper No. CB(2)1128/03-04(04) -- Submission from Hong KongPlayground Association

LC Paper No. CB(2)1128/03-04(05) -- Submission from Hong KongCommittee on Children' Rights

LC Paper No. CB(2)1128/03-04(06) -- Submission from Against Child AbuseLtd.

LC Papers Nos. CB(2)1128/03-04(07)and CB(2)2369/03-04(01)

-- Submissions from The Hong Kong BarAssociation

LC Paper No. CB(2)1128/03-04(08) -- Submission from The Law Society ofHong Kong

LC Paper No. CB(2)1158/03-04(01) -- Submission from Hong Kong FamilyLaw Association

LC Paper No. CB(2)1158/03-04(02) -- Submission from The Chinese RhenishChurch Hong Kong Synod

LC Paper No. CB(2)1158/03-04(03) -- Submission from Hong Kong FamilyWelfare Society

LC Papers Nos. CB(2)1158/03-04(04)and CB(2)2339/03-04(02)

-- Submissions from The Hong KongCouncil of Social Service

LC Paper No. CB(2)1158/03-04(05) -- Submission from The NeighbourhoodAdvice-Action Council, Eastern/WanChai District Youth Outreaching SocialWork Team

LC Paper No. CB(2)1196/03-04(01) -- Submission from Caritas District YouthOutreaching Social Work Team -Southern

Council Business Division 2Legislative Council Secretariat23 June 2004

Annex IV

Juvenile justice system

Relevant documents

Meeting Meeting Date Paper/Question

Joint Panels on Administration of Justice and Legal Services and Security

27 October 2003 Administration's paper on "Consultancy Report on Measures Alternative to Prosecution for Handling Unruly Children and Young Persons" [LC Paper No. CB(2)160/03-04(01)] Relevant extract from the Report of the Bills Committee on Juvenile Offenders (Amendment) Bill 2001 [LC Paper No. CB(2)160/03-04(02)] Research Report on "Operation of Youth Courts in Selected Places" considered by the Panel on Administration of Justice and Legal Services at the meeting on 26 May 2003 [RP07/02-03] Supplementary Information on Research Report on "Operation of Youth Courts in Selected Places" [IN31/02-03] Minutes of meeting [LC Paper No. CB(2)519/03-04]

House Committee

7 November 2003 Report of the Panel on Administration of Justice and Legal Services and Panel on Security [LC Paper No. CB(2)246/03-04]

Subcommittee on juvenile justice system

26 November 2003 Consultancy Report on "Measures Alternative to Prosecution for handling Unruly Children and Young Persons : Overseas Experiences and Options for Hong Kong" [Not available in LegCo website]

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Meeting Meeting Date Paper/Question

Background paper prepared by the Legislative Council Secretariat [LC Paper No. CB(2)429/03-04(02)] Minutes of meeting [LC Paper No. CB(2)726/03-04]

18 December 2003 Administration's paper on "Consultancy Report on Measures Alternative to Prosecution for Handling Unruly Children and Young Persons" [LC Paper No. CB(2)735/03-04(01)] Minutes of meeting [LC Paper No. CB(2)1173/03-04]

5 February 2004 Submissions from deputations [LC Paper No. CB(2)1128/03-04(01)] (Chinese version only) [LC Paper No. CB(2)1128/03-04(02)] (Chinese version only) [LC Paper No. CB(2)1128/03-04(03)] (Chinese version only) [LC Paper No. CB(2)1128/03-04(04)] (Chinese version only) [LC Paper No. CB(2)1128/03-04(05)] [LC Paper No. CB(2)1128/03-04(06)] (Chinese version only) [LC Papers Nos. CB(2)1128/03-04(07) and CB(2)2369/03-04(01)] [LC Paper No. CB(2)1128/03-04(08)] [LC Paper No. CB(2)1158/03-04(01)] [LC Paper No. CB(2)1158/03-04(02)] [LC Paper No. CB(2)1158/03-04(03)] [LC Papers Nos. CB(2)1158/03-04(04) and CB(2)2339/03-04(02)] (Chinese version only) [LC Paper No. CB(2)1158/03-04(05)] [LC Paper No. CB(2)1196/03-04(01)] (Chinese version only) Minutes of meeting [LC Paper No. CB(2)2100/03-04]

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Meeting Meeting Date Paper/Question

12 March 2004 Paper from Dr LO Tit-wing, the Consultant, on issues raised at the meeting on 18 December 2003 [LC Paper No. CB(2)1237/03-04(02)] Administration's responses to the recommendations of the Consultancy Report on Measures Alternative to Prosecution for Handling Unruly Children and Young Persons and issues raised at the meeting on 5 February 2004 [LC Paper No. CB(2)1659/03-04(01)] Information leaflet on services provided by Government departments and non-government organizations for unruly children and young persons [LC Paper No. CB(2)1721/03-04(01)] (Chinese version only) Minutes of meeting [LC Paper No. CB(2)2274/03-04]

14 May 2004 Administration's responses to the views put forward by the Subcommittee and deputations on the Consultancy Report on Measures Alternative to Prosecution for Handling Unruly Children and Young Persons [LC Paper No. CB(2)2291/03-04(01)] Administration's responses to issues raised at the meeting on 12 March 2004 [LC Paper No. CB(2)2339/03-04(01)] Minutes of meeting [LC Paper No. CB(2)3113/03-04]

House Committee 25 June 2004 Report of the Subcommittee on juvenile justice system [LC Paper No. CB(2)2895/03-04]

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Meeting Meeting Date Paper/Question

Legislative Council 9 March 2005 Official Record of Proceedings of the Council on a written question raised by Dr Hon Fernando CHEUNG on "Development of New Juvenile Justice System"

10 May 2006 Official Record of Proceedings of the Council on a written question raised by Hon Audrey EU on "Child and Juvenile Delinquency in Hong Kong"

Panel on Administration of Justice and Legal Services

-- Administration's letter dated 26 January 2005 concerning the latest position of the development of a new juvenile justice system [LC Paper No. CB(2)783/04-05(01)] Administration's letter dated 30 May 2005 on progress of review of juvenile justice system [LC Paper No. CB(2)1760/04-05(01)] Administration's paper on "Juvenile Justice System : Enhanced Support Measures for Unruly Children and Young Offenders" [LC Paper No. CB(2)2508/04-05(01)] Administration's paper on "Restorative Justice for Juvenile Offenders" [LC Paper No. CB(2)765/06-07(01)]